Category Archives: Policies & Processes

Holidays – How Clear Are Your School’s Rules about Absence for Holidays?

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During the last few weeks of term, there is the risk that parents may be tempted to take a family holiday because it is affordable compared to the peak Summer holidays period.  Although the Supreme Court has ruled on this, Head Teachers and Governors need to understand the reasoning of the Court and check that their school’s policy is clear.

Uncertainty Created by the Decisions of Lower Courts

When deciding whether a school/local authority had the right to  seek a fine on ra parent for taking their child out of school in term time, the Supreme Court noted, that using the test of ‘sufficiently frequently’ was too uncertain for parents to know whether they were in the right or wrong.  Instead, the Court held that the key was whether the parents had complied with the school policy.

Review the Clarity of Your School’s Absence/Holiday Policy

In the light of the above, you should check that your policy is clear and will be interpreted by parents that absence for holidays duing term time is a breach of the school’s rules and expectations of parents regarding the child’s or student’s attendance.

A reminder each year in January to parents/guaridans may be advisable as that is often when parents start to think about their main holiday.

Some schools may be in communities in which there are a high number of, for example, parents who are hospital doctors.  They are often obliged to take their holidays at the end of their contract and before their next role.  In such cases, the Head and Governors may wish to have some flexibility regarding holidays but that will need careful thought. 

The Court’s Core Reasoning re Attendance at School

The Supreme Court noted that education statutes had regard to the importance of a child’s regular attendance for the sake of his/her education.   A fine and possibly a conviction could arise but a conviction can be avoided if the penalty is paid on time. That may have influenced the decision of the Court to take this firm stance.  

The Balancing Skills of the Head Teacher and Governors

As noted above, the Head Teacher should ensure that:

  • the school’s policy is clear on the issue of taking holidays in school term times;
  • the consistency of any exceptions permitted.

In addition, the school will need to consider its policy on:

  • issuing penalty notices for breaches of its rules/policy.  Currently, the law permits a penalty notice of £60 to be issued.  If that is not paid within 21 days, the penalty increases to £120;
  • requesting prosecution of a parent who breaches the school rules/policy.

The reality is that some parents will feel that the benefit of a family holiday in term time with the cost of a fine is worthwhile compared to the cost of a holiday in the Summer holidays.

Are There Other Solutions?

i)  Should local authorities and academies etc. be given greater freedom to set staggered holiday times across the country to encourage holiday firms to lower their prices?

ii)  In June and July, many schools arrange school trips/holidays for educational purposes.  Should those periods be approved instead as flexiible school holiday weeks in which families can take a holiday  Schools could help to ensure that such holidays with parents are educational by providing ideas to help children/students observe and discover during their holiday experiences – that does not necessarily mean having to visit expensive ‘tourist attractions’.

iii)  Should tourist boards become more pro-active in advertising affordable holiday packages, during school holidays, as it is alleged that guest houses etc. struggle due to the competitive holiday market.

The above will raise logistical issues for schools but those could be reduced if relaxations were made on a county wide basis.  On the other hand, perhaps the taking of holidays in  term time is not a big issue for schools. Do you have a view on this issue – if so leave a polite comment below.

Sources:

Isle of Wight Council v Platt [2017] UKSC 28

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Are Your People Management Practices Effective?

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HR Management Tends to be Cautious

HR management policies and practices tend to err on the cautious side when, in reality, managing individuals means taking reasonable risks when, for example, making:

  • selection decisions; The cracks are easy to see as the plant pushes up but less so not so when dealing with indviduals
  • personal development involving the delegation of more responsibility;
  • capability and discipinary decisions.

In the photo, you can see that the growing plant is causing cracks in the asphalt. However, spotting the cracks and decay in personnel management practices is not so easy but it is an issue in many organisations including schools.

Do Your HR Management Practices Reinforce Your Key Goals and Values?

They should but senior managers usually have doubts about whether they are focused appropriately.  Before becoming immersed in another round of hr policy reviews, as the Head Teacher or a School Governor on the Personnel Committee take time to assess whether your hr management practices are effective.

To find out how and to obtain a free assessment tool view this page, ‘Hallmarks of Effective HR Management’ on our main HR Management Dimensions website.

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Distracting but Necessary Issues to Address Shortly

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In common with many organisations, Head Teachers and Governors have to grapple with peripheral issues that do not further the educational aims of the school but have to be dealt with as they are statutory requirements and could lead to adverse publicity for the school.

Peripheral Issues Arising

The following matters will need to be considered in the coming months as the implementation date for some issues is April 2017.

  1. Gender Pay Reporting **
  2. Data protection  – new European standard and regulations
  3. Employment of apprentices and the Apprenticeship Levy **
  4. Changes to Immigration rules and increased costs for employers
  5. Increases in the National Minimum Wage rates
  6. Mental health issues at work
  7. School policies that have been overtaken by recent cases and regulations.

The items with ** will apply to organisations with 250 or more staff but do not heave a sigh or relief just yet.   Because many schools are now within a larger employer such as a Multi-Academy Trust, the reporting needs will affect you although your employer will have to carry out the compliance work.

Tips About Complying and Gaining Extra Value

To help head teachers and school governors, I shall be publishing during the next two months:

  • Articles and tips on the above;
  • References to previous articles that provide insight into the pitfalls in some issues;
  • Simple checks you can make to ensure that you have not breached the requirements inadvertently.

Receive Notification of New Articles and Tips

To ensure you do not miss the articles, you can be notified when they are published.  Just click on the link for ‘receive notifications’ in the left hand column of this page.

© 2017 HR Management Dimensions

The Headsup HR blog is published by HR Management Dimensions Ltd.under the editorial lead of Jim Harrington.

Does Your Senior Leadership Team Implement Decisions Effectively?

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Many Heads and Governors review their hr and organisational policies during the Summer term in readiness for the new school year. Have you ever wondered whether the key parts of such policies are enforceable if breached? Consider the following situations:

i) A member of staff uses social media to berate a member of staff or a pupil/student of the school? Would your policy give you the authority to take disciplinary action against the individual?
ii) A member of staff is required to work additional hours/overtime at certain times of the year but the individual refuses and does not appear to have a significant reason? That is a common requirement in service industries but also arises occasionally in schools.
iii) An individual has frequent absences for what does not appear to be sound reasons. If your policy has a clause that triggers the start of an absence management procedure when absence exceeds a certain number of days, would you be able to enforce the taking of formal action under that procedure?

Many Policies contain Vague Clauses

Staff Handbooks are often divided into sections, one or more of which are expressed clearly as being enforceable terms of employment. However, policies and procedures can lead to a false sense of security for Heads as the terms may not be enforceable.

Three ring binder open to the center between yellow and brown tabbed dividers

Three ring binder open to the center between yellow and brown tabbed dividers from www.freeimages.co.uk

Policies are written often in a style that provides guidance for managers and/or staff and sometimes amongst that guidance there may be provisions or clauses that you regard as contractual terms. Hence, your belief is that a breach of those will give you the right to take formal action against the member of staff. How certain are you that they will be regarded as terms of employment and therefore any formal consequence for a breach would be legitimate?

One of the problems you have to overcome is to ensure that the provisions are clear as to what the employee must do or not do on the matter concerned. However, the wording of such provisions is often vague and will not necessarily be regarded as apt for incorporation into the contracts of employees.

Dividing Line between Guidance and Enforceable Terms

Disputes about whether the employer has a right to enforce a clause in a policy have been the subject of court cases over the years. Recently, the Court of Appeal decided a case [1] as to whether parts of policies are appropriate to be incorporated into an individual’s contract i.e. that they are legally binding. The case concerned whether the terms of an absence management policy would allow the employer to take action under that policy. The principles apply generally to the question of whether some clauses in a policy are to be treated as contractual obligations.

What Is Likely to Make a Clause in a Policy a Contractual Term?

You can improve the likelihood of key clauses being regarded as part of the contract by taking note of the following points:

  • Ensure the clause is very clear in stating what is required of the employee in the situation;
  • Linked to the above is the need to ensure the provision is workable and makes business or organisational sense;
  • Check that the nature and language of the clauses convey that the provision is intended to be contractual;
  • The placement of the clause/provision is important – if it appears alongside other provisions that are contractual then it is likely to be regarded as contractual.

If the clause/provision becomes part of a dispute, a Court will have regard to whether:

  • The provision is important to the contractual working relationship between the employer and the employee and its relationship to the contractual arrangements between them;
  • The above question equally applies to procedural provisions i.e. how important is the clause/provision to the structure of the procedures and implementing the contractual arrangements – the more important the provision, the more likely it is that the Court will believe that the parties intended it to be contractual.

Express Clauses are Best

That is true and easy to say but the need for new or revised policies often arises after the staff handbook has been produced and so those clauses can not be placed in the contractual terms section of the handbook. Hence, the importance of the points above when writing a policy or revising one.

If practical, it would be preferable to separate out, in the policy, the provisions that are intended to be contractual as this will tend to reinforce the contractual nature. Simply stating that the provisions are contractual will not make sloppy, ill thought out clauses contractual. A Court will only deem a clause to be contractual if it is apt for incorporation.

Take an Objective View When Writing a Policy

Bear the above points in mind when writing policies or guidance documents that contain matters that you would wish to be treated as contractual terms e.g to enforce via a form of management action such as disciplinary action or ill-health action as mooted in the three examples at the start of this article.

Consider the benefit of having an independent person review your policy document. This will provide an objective view of whether clauses are sufficiently robust in their construction and intent so that the clauses are likely to be regarded as having contractual force. The author, Jim Harrington, will review policies with this in mind and other key points to ensure your policy is effective. Please feel free to contact Jim Harrington via this link Send an e-mail to HR Management Dimensions or via the contact details shown in the footer of each blog page.

Sources:
[1] Department for Transport v Sparks & Ors [2016] EWCA Civ 360 (14 April 2016

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Protecting Data and Confidentiality

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As Head Teacher or Chair of Governors are you confident that your data protection is managed effectively at your school? If not, these are the likely consequences:

  • Damage to the reputation of the school if a breach occurs;
  • A significant fine;
  • A mistake in the way data is handled and/or confidentiality could have adverse consequences for a child or a member of staff or a parent/guardian.

Who on your SLT team has been allocated the role of Data Protection Coordinator? The SLT needs to take leadership responsibility for this important area as it is coming under increasing scrutiny. One or more members of the SLT need to be developed to take on the role. (See our earlier article about developing members of the SLT). The creation of such a role does not transfer liability to the individual as the school still bears the responsibility as an overall data controller. The creation of the role should help to ensure you have appropriate arrangements in place.

To help you to develop a member of the SLT appropriately, some pointers are given below and:

  • Use the references section to read further advice on the requirements;
  • Carry out an audit and lead discussions at the SLT to build ownership and confidence in the school’s arrangements.

What Data Should be Protected?

In essence any data which identifies a particular individual and which has the following characteristics:

  • The data is sensitive as it contains personal information about an individual,who is still alive, and refers to, for example, health, ethnic origin, religious beliefs, alleged or actual criminal offences and even trade union membership;
  • The data is private and if shared inappropriately would have an adverse impact on the individual;
  • Such data concerns an individual, for example, a child, parent/guardian, member of staff, governor, volunteer, job applicant, work experience person or a former employee or child/student;
  • Such data that is held on paper, on a computer or tablet or mobile phone or lap top, camera or stored on a disc or memory stick, kept on a server whether at the school or elsewhere or stored in a cloud storage arrangement.

As you will gather the scope and care of such data is wide in its nature and also its potential accessibility. Later, I shall refer to a data protection audit with the chance for you to obtain a blank template for your school. Before that we need to understand the dimensions of data protection in a school setting.

In What Way Must Such Data be Protected?

Are you confident that the data your school stores and uses meets the following criteria? When ‘individual’ is used below it applies to any person e.g. employee, pupil, parent who is the subject of the data.

i) Data is Processed Fairly and Lawfully

  • Has personal data been acquired in a fair and transparent way?
  • Where appropriate, has the individual provided the information and consented to its use in the way intended? The use to which data is put may not be obvioius to individuals so less obvious purposes should be explained especially in unusual circumstances e.g. during a transfer of staff under TUPE where information about employees has to be provided to another employer.
  • Is the collection and processing of the data required by law, irrespective of the individual’s wishes? Examples of this need will be encountered but again is the collection and use of such data in line with ii) below?
  • Has the school notified the Information Commissioner of the data that it collects etc and the use to which that is put?
  • Is the individual able to see the information that has been or will be collected about him/her? What rights does the school have to decline to provide data if the effort is disproportionate to the purpose?
  • Do you have an effective policy in place for individuals to obtain copies of the data held about them? What exceptions can you include in the policy?

ii) The Data Collected must be Relevant and Sufficient but Not Excessive

  • The data should be relevant to the purpose and not go beyond that. Collecting personal information regardless of its relevance would be unlawful;
  • Data should not be retained longer than necessary. You need to become familiar with the periods required by law, the DfE etc. for data which you may hold at the school or elsewhere. It is useful to publish a retention policy so that all staff are aware of what records may be kept, by whom and for how long;
  • Data must also be accurate and up to date. Errors must be corrected promptly when they are discovered or when made known to the school;
  • The use of CCTV and other media should not be overlooked. The prevention of crime is a recognised use of CCTV but should not be used for other purposes unless individuals affected are aware of this. Covert surveillance is subject to special requirements which can be seen on the Information Commissioner’s web site.

iii) Data is Kept Secure

  • Only authorised persons should have access to personal data and only for the approved purposes – that requires practical measures to ensure that others can not see or access the data in question. A walk around the school after most staff have gone home can be revealing as to now much personal data can be seen or accessed by anyone walking about.
  • How secure is stored data? Is paper data kept locked and access limited to particular individuals who understand the need for confidentiality at all times?
  • Is access to programmes or folders containing personal data restricted to authorised persons? Are strong passwords used and kept secure?
  • Do you have policies about the way in which personal data may or may not be kept on memory sticks, portable hard drives etc?**
  • What instructions have been given about the holding of personal data on lap tops and the security of that data and the lap tops?**
    The two asterisked points above are those in which there have been significant breaches of data protection and on which the Information Commissioner has taken strong enforcement action.
  • Who holds your data externally and where is it actually stored? For example do you use a cloud service such as Dropbox or similar. Personal data should not be transferred to a country outside of the EEA except if the data is kept secure. Beware that there are misgivings about the Safe Harbor Scheme in the USA. You should consider the use of agreed contract clauses to ensue that all parties will keep data secure. There are EC Model Clauses available to use – refer to the Information Commissioner’s website for details.
  • You need to inquire where your data will actually be kept as even UK storage companies may be ‘holding’ your data in overseas storage facilities.
  • When data is no longer required, are your disposal arrangements secure? If a contractor is used, you should walk yourself mentally through (or physically if practicable) the processes that the contractor’s staff will apply to your data.

Embedding Your Data Protection Arrangements and Policy in the School

Having a policy is a requirement but how will that be applied in practice?

  • What actions are necessary to ensure that your staff, volunteers and Governors are aware of the actions to be taken re the above points?
  • What aspects of the use of personal information do students/children need to be made aware of?
  • What procedure should be followed if a breach of protection is discovered?
  • How will you ensure that the breach is remedied promptly and that preventative action is taken and monitored?
  • How are you developing a culture of respect for confidentiality within the school?

Audit of Data Protection Arrangements

A data protection audit is a useful way to identify what data is actually being collected or stored and the used to which it is put. An audit helps to ensure that certain types of data or current practices are not overlooked and also begins the process of making managers and staff familiar with what needs to change and practices must be kept under review.

Further Reading – Schools and Data Protection Duties

Summary_report_dp_guidance_for_schools, September 2012, Information Commissioner.
Pointers for Schools by the Information Commissioner’s Office

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Changes to Spent Periods for Declaring Fines, Convictions etc. *

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Although many roles in a school are covered by an exception order requiring individuals to declare any convictions, there are still a few roles that may fall within the Rehabilitation of Offenders regulations. There are over 1 million convictions per year so it is likely, at some point, that managers will come across applicants or existing staff who have convictions. Are your managers aware of the changes to spent offences including those for which the periods have been reduced significantly?

For a summary of when offences become spent for the purposes of applying for employment or insurance or similar, there is:

Both can be shared with your managers provided the full source is acknowledged.

Primary Schools – Non Disclosure Protection for Others in the Same Household

There is a further point that schools need to bear in mind. Staff who are looking after children (i.e. in a childcare role) do not have to declare spent convictions or cautions etc. of other individuals who live or work in the same household as the member of staff. The proviso is that those convictions are actually spent in which case the Rehabilitation of Offenders regulations apply and disclosure is not required by the member of staff.

This provision is sometimes known as ‘disqualification by association’. The DfE amended its guidance in February of this year [1] to emphasise that disclosure should not be required.

Child Care Staff Covered by the Rehabilitation of Offenders Regulations

The following roles are protected by the above regulations re non disclosure of spent offences:

  • Early years provision up to and including reception class whether during or outside of school hours;
  • Child care up to the age of 8 provided out of school hours ;
  • Senior leaders or managers directly involved in the management of early or later years child care provision and that includes volunteers or casual workers concerned with the above.

Staff are still required to disclose any one living or working in their household whose conviction is not spent or whose name appears on the DBS Children’s Barred List.

Heads and Governors should note that schools should not retain information about convictions that is not relevant to an individual’s employment or for an offence that has been spent.

Sources: [1] Disqualification Under the Childcare Act 2006 – DfE Statutory Guidance, Feb 2015.

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Loophole Closed on Gaining Access to Criminal Records of Employees

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Some employers try to circumvent the Disclosure and Barring route to assess whether an employee is suitable for a job by requiring the employee or volunteer to submit a subject access request and give the results about his/her criminal record to the employer. Some employers view this method as more advantageous as it is both cheaper (£10 maximum) and fuller details are revealed compared to a Disclosure and Barring return.

Illegal Pressure

From 10th March 2015, using that route is likely to result in a conviction and fine as it will be in breach of section 56 of the Data Protection Act. It will be illegal to require an individual or a third party to supply you with a relevant record or to produce a relevant record to you if that is in connection with the following:

  • the recruitment of another person as an employee;
  • the continued employment of another person:
  • any contract for the provision of services to him by
    another person.

The regulation is cast wide in that if you encourage or incentivize an individual to use his subject access right to obtain such information that will be an offence. For example, making a tentative offer of a job but first requiring to see the results of a subject access request will be illegal. The exception will be if another regulation permits the use of subject access information for such purposes.

Beware False Assumptions

While reading the above, you may have been thinking, “We don’t do that in any case”. Are you sure that none of your managers resort to such measures during recruitment? Do not assume but make it explicit to all your managers that such action is not acceptable. Explain what the acceptable way is to obtain such information.

This article may be shared with colleagues provided the full source is acknowledged as below and copies are not used for competitive, commercial purposes.

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